A Step Towards Clarity: NLRB Petitions U.S. Supreme Court for Review of Noel Canning Decision on Invalidity of President Obama’s Recess Appointments

Contributed by Beverly Alfon

On April 25, 2013, the National Labor Relations Board filed a petition asking the U.S. Supreme Court to review a decision that a federal appeals court issued earlier this year in Noel Canning Div. of Noel Corp. v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).  In Noel Canning, the appeals court held that President Obama’s recess appointment of Sharon Block (D), Terrence Flynn (R) and Richard Griffin (D) to the NLRB was unconstitutional.  Without the valid appointment of those three members, the Board did not have a quorum and could not act lawfully.  The appeals court decision called into question the validity of every NLRB decision issued since January 4, 2012 (when President Obama appointed these members) — including controversial rulings that reversed long-standing precedent.   Nonetheless, as we discussed a few weeks ago, the NLRB has continued to conduct business as usual, leaving politicians clamoring for resolution and employers uncertain about the true effect of the D.C. Circuit’s decision.

The issues presented for review before the Supreme Court are “(1) whether the president’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate; and (2) whether the president’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.” In its petition, the NLRB argues that the president’s recess appointment authority is not limited to intersession recesses and that the president may fill a vacancy that exists during a Senate recess, even if the vacancy did not arise during that recess.

The NLRB also asserts that the D.C. Circuit’s decision would have “serious and far-reaching consequences,” including numerous presidential recess appointments made long before 2012, and therefore, any decisions rendered under such constitutionally flawed Boards.  The NLRB notes in its petition that there is no time limit on petition for review of Board rulings and further warns that the appeals court decision “also threatens a significant disruption of the federal government’s operations — including, most immediately, those of the National Labor Relations Board.”

Assuming that there are no extensions sought and granted, opposition to the certiorari petition is due May 28, 2013. Typically, a petition filed at this point in time would not be considered for review until after the Court’s summer recess, during the Court’s first conference in September 2013. However, it is possible that the response to the petition will be filed early and the Court may decide on whether or not to grant certiorari before summer recess.